The CHAIRMAN. Is there not enough testimony now on file, and expert knowledge, to determine the tolerances as regards those particular articles?

Mr. CAMPBELL. I think that could be done. Certainly, that is true with respect to arsenic.

But, Senator, there are new proposals arising every day for new types of insecticides. Manufacturers have actually put on the market mercurial insecticides. Selenium is one on the market now, in a commercial way. We recognize the importance of sprays, and recognize the need for these poisons for the purposes which I have indicated. The effect of abolishing these insecticides and permitting the growth and ravages of these crop pests would, in all probability, prevent the production of a sufficient fruit and vegetable crop to meet the food demands of the country. We have no desire to bring about such a situation.

The CHAIRMAN. What do you mean by an insufficient crop, or by a short crop? Would that be one that falls below the requirements of the country for that particular crop?

Mr. CAMPBELL. Yes.

The CHAIRMAN. You mean that we would have to choose between prohibiting the use of sprays, with the consequent increase in the insects, so that the crop would be destroyed, and proper regulation by which the public health could be protected, and the crops, at the same time grown?

Mr. CAMPBELL. Yes.

The whole idea, as we understand it, is to permit, first, the production of these crops; second, to see that they are marketed in a manner that is safe for the consuming public. The public should not be injured by poisonous spray residues. At the same time, we can not ignore the economic situation, the practical problem with which the grower is faced, in resisting the attacks of these insects, which endanger his crops.

We propose this legislation with a full and complete understanding of the necessity for the protection of the public health not only but also of the protection of the economic interests of the growers.

The CHAIRMAN. As a matter of fact, are there a good many places in your Department where the question of added poisons would come into play?

I assume it was largely with reference to the spray residue that the chief menace existed.

Mr. CAMPBELL. Not at all.

This is the chief menace, of course. These sprays form a very large part of the group from which the added deleterious substances come. These particular products are those on which we have spent much time and money. They are not alone. There are a great many products in which added deleterious substances may be found. They are being discovered every day. We never know where we are going to find them. They may be found where least suspected, due, sometimes, to careless manufacturing operations, such as using lead manufacturing equipment, and such as the deliberate addition of ethylene glycol to frozen eggs, as mentioned a moment ago.

It seems to me that there is an opportunity, under the terms of this measure, for the protection of the consumer by the requirement

that, when they are unnecessary, added deleterious substances should be eliminated altogether. We recognize, at the same time, that tolerances must be established for fruit and vegetables, but should be restricted to amounts safe for consumption.

The CHAIRMAN. It occurs to me that ease of administration would be materially promoted if you have a small group of poisons now known to the Department as likely to be found in food-I am referring now to chemical poisons-that if you actually wrote into your bill the tolerances and quantities which would be permitted, you would have the same ease of administration that you have with regard to butter.

Mr. CAMPBELL. Quite right, if that could be done. Of course it would be the ideal and proper way, but I doubt whether it can be done. Shall I go ahead with section 4?

The CHAIRMAN. You may proceed.

Mr. CAMPBELL. On line 3, page 4, under item (3) of this subparagraph, the same language is used to define adulteration that is now employed in the present act.

Under item (4), you will find the new language. It is: "if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth;"

Under the present law, the only action that can be taken to require the observance of sanitary precautions in the handling of food is to be found in section 7, paragraph 6, which deems a food product to be adulterated if it is filthy.

The CHAIRMAN. Would that cover rat dirt and the excreta of animals?

Mr. CAMPBELL. Yes; it would cover that and as a matter of fact, those instances where food had been prepared under objectionable and thoroughly insanitary conditions, even though you could not find, upon an objective examination of the sample, the evidence or definite proof of that filthy condition.

Let me illustrate: On the Eastern Shore of Maryland and Virginia, there is a concentrated industry engaged in the preparation of fresh crab meat. It is a favored article of food along the eastern coast, and also in certain other sections of the country, at certain times of the year.

In some places, it has been found that the conditions under which this perishable food product was prepared were such as to lend themselves to contamination of this food. Such contamination has manifested itself by outbreaks of illness in the principal consuming sections of the country.

Perhaps the very food that may have been responsible for the illness had been sampled and examined by the Department, but the limitations of bacteriological examination are such that affirmative evidence of the filthy condition could not have been obtained in all

cases.

The only thing that is required here is that there be adopted a decent system of cleanliness in manufacture. Particularly is this essential in perishable foods of this type.

This is a requirement that is imposed by a great many of the States in one form or another. Those States which have adopted requirements, in some form, comparable or identical with the language suggested here, are Maine, Maryland, Mississippi, Nevada, New

Hampshire, New York, Oregon, Pennsylvania, South Dakota, Texas, and Wisconsin.

If there is required to be maintained this standard of acceptable sanitation, in the production of food products for consumption in those States, and if there is no protection by means of a provision in the terms of a Federal law, and if there is a State which has no legal requirement for the observance of these sanitary conditions, it is utterly impossible for those States just enumerated to take any legal action for the protection of consumers in such States.

I do not imagine there will be any objection voiced to this item by anyone, Senator.

It is obviously an essential requirement.

Item 5 of that paragraph is the same as found in the present law. Item 6 is a new one.

"If its container is composed of any poisonous or deleterious substance which may by contamination render the contents injurious to health."

This is not to be found in the present law, but need for it will be definitely recognized when I refer to the use of lead chests, or lead containers, for the packing of tea. It has been found that through the abrasion of the leaves the lead content of the container does become, in the course of time, and through extensive handling, more or less disseminated through the tea, throughout the package. It has been found in the brew made from such tea.

There are other packing methods that can be adopted that will avoid this objection.

The elimination of lead foil by the use of tin foil or of aluminum foil would do so. There is a definite remedy, and there is no definite hardship placed upon the manufacturers because of the variety of containers that exist today. The provision certainly is essential for the protection of the health of consumers.

In paragraph (b) of section 3, the first, the second, the third, and the fourth items are substantially as they are to be found now in the law.

In some instances these requirements have been made in modified form.

Paragraph (c). Confectionery. It retains the existing prohibition against the presence of alcohol. It also prohibits resinous glaze, or nonnutritive substances except coloring and flavoring this is new.

That particular phrase "or nonnutritive substance" was intended to take care of the candy-carrying trinkets of the sort that have been in the recent past extremely popular. If you will notice, from the specimen of candy in this jar, the individual pieces of candy have been cut apart in order to let you see the location of the trinkets inside. Those that have not been cut contain these trinkets inside. You can see the different types of trinkets, themselves. There is no question about the risk to children in the consumption of this candy, not only because there is a likelihood of breaking teeth, but because of the possibility of swallowing the candy, and aspirating the trinket, and requiring a surgical operation of a serious character to remove it.

Here is an X-ray photograph showing that this is not merely an imaginative danger or a mere speculation as to possible victims of the consumption of this candy, but it shows the location in the trachea, of this metallic trinket.

by that one decision, you would then establish that that was the legal limit of the use of arsenic; is that right?

Mr. CAMPBELL. That decision, if it supported the view of the Department, would be of value. It would not preclude the opportunity of any person to question the soundness, the sufficiency of evidence, or the arbitrary nature of the administrative determination at any subsequent time. There would be available always the opportunity to a defendant; first, to attack these tolerances as such, on the ground that they were not justified, that they were arbitrary and unreasonable; there would be that opportunity, then, in the second place, to make defense at the time of the trial of any case that might be brought up.

The CHAIRMAN. I was quite clear about the example you gave about the butterfat. I got the impression in mind there would be some establishment of a standard as regards tolerances in reference to various poisons.

You could not establish that by act of Congress to really fix the tolerances that would be permitted?

Mr. CAMPBELL. Perhaps, but would it be practicable?

It would take an act of Congress of the sort that we are asking in this particular section to provide satisfactory control.

The CHAIRMAN. Then, where tolerances would be fixed by your scientific committee, they would also always be subject to attack in the courts?

Mr. CAMPBELL. Senator, we have tolerances now; merely administrative tolerances.

The soundness of those tolerances must be shown, the evidence on which they are predicated must be introduced in ample volume in connection with every trial that develops upon any product where this charge is involved.

What we are undertaking to do, for the benefit of the public generally, and, of course, to make the regulation of traffic containing added deleterious ingredients more effective for the protection of the public, is to establish definitely, upon scientific bases, what the amount of poisons safe for human consumption will be.

The Congress, itself, could pass a measure establishing such tol

erances.

Repeatedly, in this law, we have gone on the assumption that the questions arising in the regulation of food and drug products and traffic therein are so complex and so shifting that they do not lend themselves effectively to rigid legislative expression.

Further, we have assumed that it would be in the interest of the public and in the interest of honest manufacturers, to make some provision, similar to that made in this section, for an administrative agency to be empowered on a fact finding basis to give expression to a legislative intent, rather than have Congress attempt to legislate in such detail.

The principle upon which that conclusion is based can be found in innumerable legislative acts.

Senator MCNARY. Mr. Campbell, in plain orchard English, you mean that anyone who is charged with disobedience of this section is a defendant, and must come in court and establish his innocence beyond a reasonable doubt?

In other words, he is presumed to be guilty, and must defend himself, beyond a reasonable doubt, upon that presumption, and contrary to the usual course of law?

Mr. CAMPBELL. Unquestionably, Senator, if it were to be shown in the case of a particular defendant that his product contains in excess of the tolerance, action would be brought in the nature of a violation, but he would have an opportunity to defend himself against it.

Senator MCNARY. If you have a roomful of experts and professors, that come to examine a certain product that is manufactured by a certain process, or in a certain way, and your professors agree that there has been a tolerance there that has not been satisfactory, the defendant, in order to come outside of the provisions of this bill must come in and plead his case and establish his innocence.

Mr. CAMPBELL. The defendant will be required to show that the opinion of this group of experts was unreasonable.

In the first place, the law itself proscribes the interstate shipment of any food product dangerous to health.

Senator MCNARY. Why do you change the general order of proof that has come down to us from the ages in the common law of the English, and in our statutes, that a man charged must defend himself, but first, it must be shown to the jury, by the system that you propose, that he shall be deemed guilty by the opinion as presented by an organization such as you describe, of experts and economists and professors, and against which he will have to defend himself?

Why do you not go along in the ordinary, common way, of first proving him guilty, and then letting him prove himself innocent? Mr. CAMPBELL. One reason, which I tried to point out beforeSenator MCNARY. You tried to point it out, but I am just not converted on that particular point to that particular plan of changing the established way of handling court procedure and giving the individual an opportunity, under this bill, not to have the protection of the law.

Mr. CAMPBELL. I do not think that he is denied that, Senator. Senator MCNARY. You just said he was.

Mr. CAMPBELL. I said that he had the right to come in and defend himself.

Senator MCNARY. If it were shown by these experts and talented men, in their opinoin, that this individual had violated this law, and they seize him, he must come in court and establish his innocence; is that not so?

Mr. CAMPBELL. I do not know of any place where we can find a clear knowledge of what the physiological effect of these deleterious ingredients will be, except the scientific experts, and that does not mean a cloistered group of individuals who do not know anything about marketing operations of food products, necessarily; but we must turn to the medical fraternity, the pharmacologists, and the toxicologists, for information on this.

Let me say that we are proceeding here, in this instance on the broad assumption that there will be a sympathetic consideration of any proposal that we advance to make foods safe for consumption. We think, at the same time, that there should be a recognition of the amount of added deleterious ingredients that come from all

sources.

Senator MCNARY. I am not disagreeing with that proposal. For the years that I was Secretary of Agriculture, I had jurisdiction over this Food and Drug Act. We always went along with this. I have always supported the legislation of the committee.